Even accepting that recognisable psychiatric illness is a necessary condition of a plaintiff's claim, the development by Mrs. Clare Janet Tame appeals against an order of the Court of Appeal of New South Wales setting aside a judgment for damages for nervous shock that she had obtained in the District Court of that State. The law of negligence applies to ordinary persons as well as to great corporations and wealthy individuals who have access to the most recent psychiatric insights concerning the effect of stress on the human psyche. Absent special knowledge, a defendant is only liable for what an ordinary person in his or her position ought to reasonably foresee. It would be going a long way, however, to conclude that ordinary persons are conversant with the more extreme reactions to shock unfortunately suffered by abnormally susceptible people.
In each case, foreseeability of risk and preventability of harm were defined and applied by reference to each other. Thus, in the first case, were it necessary to determine foreseeability, that question would fall for determination by reference to a person of normal fortitude. Tame heard of the mistake from her solicitor. Given the wide publicity in books, newspapers, films and television and the extent of psychiatric illness in communities, it could hardly be otherwise. However, that is not to say that those relationships or their special features cannot be identified when new cases present themselves for decision. Tame rang Constable Morgan who told her that a mistake had been made and that her blood alcohol reading was nil. It is, therefore, wrong to concentrate only on these fears.
A plaintiff in an action of negligence cannot recover damages for a 'shock', however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. Abstract A number of legal issues have remained open since the High Court last considered the question of liability in negligence for nervous shock in 1984. Tame suffered a great deal of stress. Tame v New South Wales Negligence — Duty of care - Psychiatric injury - Motor accident - Clerical error by police constable in recording driver's blood alcohol content - Psychotic depressive illness caused by driver learning of mistake - Whether duty of care owed by police constable to driver - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty - Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath. They do not apply where the defendant is already under a duty to take reasonable care to avoid injury to the plaintiff. The relationship between two friends who have lived together for many years may be closer and more loving than that of two siblings.
Contrary to those assurances, he was sent to work, alone, in a remote location. Tame's blood test, and the relationship that existed between him and Mrs. What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The specified paragraphs of the Amended Statement of Claim contain both assertions of fact and assertions of law. Certainly, a majority of the Court used reasonable foreseeability of shock, and not reasonable foreseeability of injury, as the test for breach of duty.
Although he did not say so, his argument regarded it as a category of indeterminate reference that courts use as a means of confining liability for nervous shock. Tame of a condition that was diagnosed in 1995 as psychotic depressive illness, in consequence of being informed by her solicitor, in 1992, that a police officer, in 1991, had made a clerical error in filling out an accident report form, suggests the implications of the imposition of a duty of the kind in question. The report was corrected and an apology sent, but the plaintiff became obsessed with the mistake, feeling she was being punished for some past misconduct and felt guilty. Instead, courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others. His Honour explained the concept of judicial notice as being an ability on the part of a court to take account of a fact either simpliciter if immediately satisfied or after such investigation as it considers reliable and necessary in order to eliminate any reasonable doubt. But the common law adds two conditions to this statement concerning foreseeability. The circumstances of his disappearance and death were such that injury of that kind was more, rather than less, foreseeable.
That submission cannot be accepted. Hence, perhaps, the absence in those jurisdictions of occasion for countervailing unprincipled limitations. His parents, the applicants, had agreed to permit him to work for the respondent, in a remote part of outback Australia, on the faith of assurances that he would be well cared for. If all of the passengers on the train were killed when the train derailed and were all already dead before the police officers arrived at the scene, then the High Court's decision may have been different. He made a slip; he noticed the error within a fairly short time, and corrected it.
Tame some distance to say that, this result having occurred, any psychiatrist would say that it would have been foreseen. Tame to avoid inflicting nervous shock upon her. But those requirements exist by virtue of rules of law. Tame identified no less than 14 issues in the appeal, one of which was divided into three sub-issues. Unprincipled distinctions and artificial mechanisms of this type bring the law into disrepute. Consider, for example, an occupier of land on which there is a dwelling house. None has proved to be an all-embracing explanation for the way in which the law has developed and is developing.
The Full Court was not justified in overruling the finding of Heenan J on this point. A blanket rule of no duty of care seems more in accord with the efficient administration of criminal justice than a case by case examination of each recording. In those circumstances there was a relationship between the applicants and the respondent of such a nature that it was reasonable to require the respondent to have in contemplation the kind of injury to the applicants that they suffered. Section 151P does not displace the operation of section 4 since it envisages the existence of a duty of care on the part of the employer to take reasonable care to avoid causing psychiatric injury to the persons referred to in the section. On 14 June 1990, he was crushed to death in a workplace accident when a large forklift vehicle reversed over him. In Tame and Annetts, two recent decisions of the court, a number of the outstanding questions were addressed.
Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she received a formal apology. On 28 or 29 April 1987, Mr. To describe them as cases about psychiatric injury directs attention to the kind of harm suffered by the injured plaintiffs, and the interests of the plaintiffs which the law might protect. The control over the risk of harm to James, and the risk of consequent psychiatric harm to the applicants, was held to a significant, perhaps exclusive, degree by the respondent. Most often this reluctance is seen to be based in fears that exaggerated or false claims will be allowed: that judges or juries will be unable to discern error in diagnosing psychiatric injury or to distinguish between the injured and the malingerer.